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I live in California, and would like to know if I can file a bankruptcy seperate from my husband?

Ontario, CA |

We have not lived together in almost a year. I filed my tax return for 2012 as head of household and he will file his own tax return this year. Also, what happens to my tax refund if I file the bk before my tax refund comes? Help, I have a wage garnishment that I need to stop.

Attorney Answers 6

Posted

Yes, you can file bankruptcy by yourself without your husband having to file. Since you are separated, and living apart, you will not have to list your husband's income or expenses. You will have to list the anticipated tax refund as a potential asset in your bankruptcy case, but you may be able to keep it, depending on the exemptions that are available to you. This will require an analysis by a local bankruptcy attorney who knows the CA exemptions. Bankruptcy is a good way to stop a wage garnishment.

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Filemon Kevin Samson

Filemon Kevin Samson

Posted

California is a "Community Property State", so you are entitled to half of all community property and quasi-community property interests. As such, the Trustee could look toward your community property share interest in your husband's property. You will need to list property of your husband that may fall under these State law provisions. This may effect your exemption schedule. You should enlist the services of a bankruptcy attorney in your area to assist you. My firm has an office location near you. www.samsonlawfirm.com

Posted

First, consult with a CA bankruptcy attorney to see if it is financially better to file before the refund is received, to stop the garnishment faster, or to wait until after the refund is spent. The refund is NOT protected from the bankruptcy trustee. Yes, you can file a single bankruptcy petition, whether or not you or living with your husband.

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Posted

You are allowed to file without the involvement of your separated spouse. As to your tax refund you need to consult with an attorney to see if it can be exempted. If it can be exempted then you should file sooner than later. If you are not able to exempt it all then you have to way how much will be gained or loss by waiting to receive the refund prior to filing.

Remember that on this forum attorneys try to answer your questions with limited facts available to them. My answer should in no way be considered legal advice. No attorney client relationship has been formed by any answer given here.

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Gary D. Bollinger

Gary D. Bollinger

Posted

Frankly, I was hoping for a more comprehensive answer by a CA bankruptcy attorney. In Eastern District of MO, where I practice, community property does not exist. In MO, the rules for administration of tax refunds by a bankruptcy Trustee are, in my opinion, clear on filing a joint return or as "married, but filing separately." Because of the community property rule in CA, I thought capture of the income of the non-bankruptcy- filing spouse would differ. The answer leaves me unenlightened.

Hermin A. Dowe

Hermin A. Dowe

Posted

In answering questions asked on this forum I try to give the potential filer information on a level that is simple enough so they can make a decision as to how to move forward. I am not trying to enlighten or educate other attorneys. Sorry if this is not what you expect.

Gary D. Bollinger

Gary D. Bollinger

Posted

Thank you for that explanation!

Posted

Yes, in California, given the facts you state, you can file individually. On the Chapter 7 Means Test you would just check box 2c "Married, not filing jointly, with declaration of separate households."

Regarding the tax refund, you would list the amount of the anticipated refund as an asset in Schedule B and exempt it to the extent possible in Shedule C. There is no separate exemption for tax refunds, so you would need to exempt it using the "wildcard" exemption at CA Code of Civil Procedure (CCP) Sect. 703.140(b)(5). If you are not able to exempt the full refund, then as suggested in other responses, you can wait to file until after you have received your refund, but it would have to also be spent as well before filing your bankruptcy petition otherwise if it is just sitting in a bank account you would still have to find a way to exempt it. With a little over $25k available in the wildcard exemption however, you would probably not have a problem exempting the anticipated future refund.

As to the issue of the wage garnishment, you do not state what the basis for the garnishment is. If it is related to a debt that is not dischargeable (a tax levy for instance, or a defaulted student loan), then filing the bankruptcy may not stop the garnishment or, if the automatic stay does stop it, that may only be temporary until the creditor can get releif from stay and then resume the garnishment. Certain debts & creditors are automatically exempt from the automatic stay however, so if they have caused the garnishment to go into effect, the filng of your bankruptcy will have no effect on the garnishment. However, if the garnishment is due to a typical situation where a credit card creditor has obtained a judgment against you that has resulted in the garnishment, then the filing of the bankruptcy will automatically stop that garnishment and would prevent it from continuing.

So, as you can see, it would be a good idea to consult with a local bankruptcy attorney (many will offer a free initial consultation) so that your entire financial situation can be reviewed and you can receive more specific advice tailored to the facts of your case as far as whether all of your assets can be exempted and whether the wage garnishment is for a type of debt that can be discharged or not. If the underlying debt is dischargeable, then the automatic stay will stop the garnishment. If the underlying debt is a type that is not dischargeable, then the automatic stay will either not stop the garnishment at all, or will only stop it temporarily.

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Posted

It sounds from your question like you are still legally married to your husband. Since California is a community property state, this may affect your bankruptcy. For example, you need to list any community assets in your schedules, and your bankruptcy filing may affect some of your husband's debts if he got them while you were still living together. I would strongly encourage you to talk to a local bankruptcy attorney who is familiar with the details of the California Family Code and can give you advice on how to handle these issues.

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Posted

A true lawyer's answer to your question -- Yes, you can likely file separately from your husband, but it depends on the extent of your marital assets and any community income. Living separately and filing separate tax returns does not necessarily end the marital community, unless you have filed for dissolution or legal separation. However, you may still qualify for Chapter 7 depending on the numbers. If you do qualify for a Chapter 7 based on your income, then you may be able to keep all of your tax refunds if the refund is protected under the allowable legal exemptions in California.

To get a better answer, you really should meet with an experienced bankruptcy attorney in your community, since there are a lot of moving parts to your case.

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